JUDGMENT

1. Obedul Gani and Mohamed Abul Fazel purported to create a wakfalal-aulad by an instrument, Ex. A (II. 10). The properties included in the said deed are the properties described in sch. ka and 11 annas odd gundas share of the properties described in sch. kha of the plaint. On 20th June 1918 another wakf-alal-aulad was created by the instrument Ex. A-1 (II. 28) by five persons Sofia Khatun, Syed Mohamed Hossein Ali, Mohamed Obedul Gani, Hosseini Khatum and Ojihannessa Khatun. It comprised the remaining share of the properties of sch. kha of the plaint. The relationship of the parties who created the aforesaid two wakfs and of the parties to this litigation would appear from the following genealogical tree:

                 Akhilenessa = MOHAMED FAZEL alias MUCHI MIA = Rahatannessa                                                              |                                      |--------------------------------------------------|                                Ali Nazir (dead)       Hosseni Khatun = Abdul Samad (deft. 4)                                                                                |         |----------------|---------------|------------|----------|---------|  Rokeya Khatun   Deft. 5 = Obedul  Md. Abul Fazel    Md. Ismall    Moazzuam  Ojhanessa  Fatema   Gani = Golsabba  =Sydenessa (deft.3)  (dead)        |                 =Mir Afzal Ali        (deft. 5)         |                    Syed Hossein (deft. 8)        |                          |                                            |----------------|                          |                                  Syed Hossin All    Sofia Khatun            |------------------------|------------|         =Asiranessa (plff. 3) (plff. 1)       Roshanara (deft. 1)    Jamila (deft.  2)  son              |      =Syed Mohiuddin         Abdur Rahim        dead        Syed Nazeb All (plff. 2)           (deft. 6)           (deft. 7)

2. The suit was brought by Sofia Khatun, Syed Hossein Ali and Syed Nazeb Ali for a declaration that the aforesaid two wakfs are invalid in law. The learned Subordinate Judge adjudged them to be invalid and gave She plaintiffs the declaration they asked for. Defendants 6 and 7 have preferred this appeal. In the appeal, the following questions only were raised : (1) Whether the two wakfs in view of their terms are invalid. (2) Whether the question of the validity of wakfs is res judicata and (3) whether the suit is barred by limitation. No other point was canvassed before us. In considering the first question the two wakfs must be dealt with separately for the terms thereof differ from one another in material particulars though both of them purport to be wakf-alal-aulad. The mate-rial terms of the wakf created on 5th June 1891, (Ex. A-II10) are;

(a) the mutawalli was to get a yearly salary of Rs. 36; (b) the yearly allowance (under the incorrect designation of salary) of

Rs. 180 - was payable to Obedul Gani

Rs. 180 - to Abul Fazel

Rs. 20 - to Ali Nazar

Rs. 15 - to Fatema

Rs. 15 - to Ojihannessa

Rs. 15 - to Hosseni Khatun and

Rs. 20 - to Fazlar Rahman

Total Rs. 445

3. On the death of the abovementioned persons the allowances payable to them were to be paid to their respective heirs in succession according to the law of inheritance; (Para. 4.)(c) The mutwalli was required to spend Rs. 50 a year towards pious acts in connexion with Id-ul-Fitr, Id-ul-Zoha, Muharram, Fateha-dwaz-daham and Shab-e-barat. Over and above he was required to make gifts to afflicted and needy persons, but no sum was specified for those purposes. (Para. 6.) The purposes mentioned in this paragraph are stated to be the principal objects of the wakf, but that statement cannot by itself make the wakf a valid one if its substantial effect is otherwise, (d) The deed further provides that if any person to whom an allowance was payable became a renegade or acted against social customs or was guilty of an act that may be regarded as dishonorable to the family he would lose his allo